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Applications for leave to appeal dismissed- 18 December

On appeal from the judgment of the Court of Appeal for British Columbia pronounced August 5, 2014. The applicant and several other people attacked Tyson Edwards outside a nightclub in downtown Vancouver. The attack lasted about one minute. At some point during the attack, Mr. Edwards was stabbed in the chest with a knife. The wounds were fatal and Mr. Edwards died. It is unknown which of the attackers used the knife. Four men, including the applicant, were charged with manslaughter. One was acquitted because the Crown failed to prove he participated in the attack. The other three were convicted of manslaughter. The appeal was dismissed. The Supreme Court of British Columbia found the applicant guilty of manslaughter and the applicant’s appeal was dismissed.

35993Munyaneza v. The Queen (Criminal law — War crimes or crimes against humanity — Applicant being found guilty of genocide, crimes against humanity and war crimes in context of internal armed conflict in Rwanda in 1994)

On appeal from the judgment of the Court of Appeal for Quebec pronounced May 7, 2014. This application for leave to appeal concerns the guilty verdict entered following the first trial in Canada — that of the applicant, a resident of this country — of a person charged with participating in the genocide in Rwanda. At the time of the Rwandan tragedy, the applicant was living in Rwanda, but he fled that country in July 1994, settling in Canada in 1997. The RCMP subsequently received information linking him to the genocide and began a lengthy investigation. In October 2005, the applicant was arrested and charged with seven counts under the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24. Following a long trial, he was convicted on all seven counts and sentenced to life in prison. The Court of Appeal dismissed his appeal.

36086Shular v. The Queen (Criminal law – Sentencing)

On appeal from the judgment of the Court of Appeal for Alberta pronounced September 26, 2014. The applicant pled guilty to two counts of criminal negligence causing bodily harm and failing to stop at the scene of an accident. Wheatley P.C.J. rejected a joint submission supporting two concurrent four-year prison sentences for criminal negligence causing bodily harm and a concurrent six-month prison sentence for leaving the scene of an accident. Instead, Wheatley P.C.J. imposed a concurrent sentence of four and six years imprisonment for the two counts of criminal negligence causing bodily harm and a consecutive one-year term of imprisonment for leaving the scene of an accident. The majority of the Court of Appeal allowed the appeal against sentence only to the extent that the global presentence custody credit was varied to 519 days.

On appeal from the judgment of the Court of Appeal for Ontario pronounced February 26, 2014. The applicant was stopped for speeding on Highway 401. He was arrested for breach of a bail curfew. The officer searched the driver’s seat area of the applicant’s vehicle and testified at trial that he did so to ensure officer safety. Immediately upon entering the vehicle, he smelled marihuana. He found cash and a second cell phone. At trial he testified that he then arrested the applicant for possession of marihuana for purposes of trafficking before searching the entire vehicle. The applicant testified that the full vehicle search preceded his arrest for possession of marihuana. The officer found a large quantity of marihuana inside vacuum-sealed cylinders inside a partially-open duffle bag in the trunk. Two other officers testified that they subsequently smelled a strong odor of marihuana after the vehicle was towed to a police station. The applicant applied to exclude the marihuana from evidence on the basis that it was obtained in breach of s. 8 of the Charter. He testified that he took steps to protect the discovery of the marihuana and to mask its smell. The defense called expert testimony about the olfactory ability of humans, the odour containment properties of packaging, and the smell characteristics of raw marihuana. The expert opined that the officers could not have smelled the marihuana as they claimed. The Ontario Court of Justice convicted the applicant for possession of marihuana for purposes of trafficking. The Court of Appeal dismissed the appeal.

On appeal from the judgment of the Court of Appeal for Quebec pronounced May 2, 2014. The applicant brought an action against the respondent with respect to the handling of a claim submitted under a home insurance policy issued by the respondent. The claim had been submitted to the respondent for water damage caused by a leak in the roof of the applicant’s residence. The respondent, noting that the applicant was an undischarged bankrupt at the time he introduced his action, brought a motion to dismiss the action on the basis that the right of action had vested in the trustee acting on behalf of the mass of creditors. The Court of Québec granted the respondent’s motion to dismiss for lack of capacity. The Court of Appeal dismissed the applicant’s motion for leave to appeal.

36116Richard v. Chiriac, et al. (Civil procedure)

On appeal from the judgment of the Court of Appeal for Quebec pronounced August 6, 2014. The applicant brought an action in damages against the respondents. She alleged that they had failed to comply with a court order ratifying an agreement with respect to a DNA test and had given false testimony in that regard. She asked that a new test be conducted and claimed damages. Emery J. dismissed the action in a preliminary proceeding on the basis that it was ill-advised and improper. The Court of Appeal began by dismissing the appeal in the preliminary proceeding on the basis that it had been brought irregularly. However, the court granted the applicant permission to apply orally for leave to appeal out of time. But the Court of Appeal refused that leave because, in its opinion, the applicant had failed to show that it had been impossible for her to act and, in any event, the appeal had no reasonable chance of success.

36066Mann v. The Queen (Criminal law – Procedure)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced June 18, 2014. In February 2007, the Crown preferred a direct indictment charging the applicant and others with kidnapping and related offences. The accused elected trial by jury, but shortly before the trial was to begin; they re-elected to be tried by a judge sitting alone. A stay of proceedings was entered by the Crown. The proceedings were recommenced within a year of the stay and a new trial date was set. The Crown preferred a second direct indictment that was substantially the same as the first. When it became apparent that this indictment was a nullity because had there not been an election as to the mode of trial, the Crown opted to proceed on the first indictment. On the first day of the trial, the defence made a preliminary objection to proceeding without a jury. The objection was overruled and the trial proceeded before a judge sitting without a jury. The applicant was convicted and his appeal was dismissed.

On appeal from the judgment of the Court of Appeal for Manitoba pronounced April 14, 2014. This appeal is about whether the ex parte interim preservation order in favour of the applicant Ms. Kim, issued pursuant to s. 21 of The Family Property Act, C.C.S.M., c. F25 (the “FPA”), should have been set aside by the motion judge. The asset protected by the preservation order is commercial real estate that had been sold by the respondent Mr. Kim (the applicant’s husband) to the interested party, the respondent, Ms. An. Unknown to the motion judge at the time that he granted the preservation order, the closing of the purchase of the property by Ms. An had already occurred, the sale proceeds had been paid out to Mr. Kim but registration of the transfer of land had not been completed. Ms. An filed a motion, as an interested party, to set aside the preservation order. Mr. Kim did not participate in the hearing of Ms. An’s motion before the motion judge or on the appeal. Ms. Kim opposed Ms. An’s motion. The motion judge dismissed the motion to set aside the preservation order. The Court of Appeal allowed the appeal.

36042Sigouin, et al. v. Maddex (Torts – Motor Vehicles – Police)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced September 4, 2014. The respondent is a member of the RCMP. On March 20, 2010, he was on duty and operating a marked RCMP vehicle, equipped with emergency lights and a siren. While travelling southbound in the passing lane, the respondent had his radar set turned on such that he was able to monitor the speed of oncoming traffic. He believed that there was no traffic following behind him within 10- or 15-car lengths. When he noted that an oncoming northbound pickup truck was passing another vehicle and travelling at 126 kilometres per hour, he decided to stop the speeding pickup truck. He activated the emergency lights on his police vehicle. He applied the brakes, slowing and preparing to make a U-turn so that he would be travelling northbound on the highway. On the same date, the applicant, Siguoin was travelling on the same highway returning from a service call. He was driving a full-sized commercial van which was towing a trailer. He was also travelling southbound, in the passing lane. While the trailer was equipped with brakes, they were not connected or operational at the time. Sigouin was travelling behind the police car driven by the respondent. At some point, Sigouin noticed that the police vehicle had activated its emergency lights and was braking. He said that he was only approximately three car lengths behind and was too close to be able to stop his vehicle without colliding with the rear of the police vehicle. In order to avoid colliding with the police car, Sigouin swung his vehicle into the left-turn lane in an attempt to go around the left side of the police car. As Siguoin pulled into that left-turn lane, the respondent initiated his left turn to effect his U-turn. The van struck the driver’s side door of the police cruiser in the northbound left-turn lane of the highway. At trial, each driver was found to be similarly responsible and liability was apportioned equally, that is, 50 percent for each of them. The Court of Appeal however allowed the appeal, finding that Sigouin was solely liable for the injury the respondent suffered in the accident.

On appeal from the judgment of the Court of Appeal for British Columbia pronounced June 2, 2014. The respondent obtained a final arbitration award against the applicant from the International Chamber of Commerce International Court of Arbitration. The respondent filed a petition with the Supreme Court of British Columbia for recognition and enforcement of the award and also sought and obtained security for it through an ex parte Mareva injunction. The injunction was used to prevent a shipment of coal purchased by the applicant FOB from leaving British Columbia by vessel. The respondent agreed to indemnify the charterer. The respondent then applied to the Supreme Court of British Columbia for an order authorizing recovery of its expenses in enforcing the award, including the amounts it had paid to the charterer. The applicant brought an application for a declaration that the respondent was liable for the applicant’s losses suffered from the Mareva injunction. The chambers judge held that there was material non-disclosure by the respondent in the application for the Mareva injunction, through its failure to disclose to the granting judge its ability to enforce its award in Pakistan. She also fund that many factors weighed against granting such an injunction in this case. She granted the application by the applicant and dismissed that of the respondent. The Court of Appeal allowed the respondent’s appeal, holding that there had been no material non-disclosure and that the discretion to grant a Mareva injunction had been properly exercised. The matter was remitted to the lower court for an assessment of expenses.

On appeal from the judgment of the Federal Court of Appeal pronounced June 10, 2014. The applicant taxpayer and the Canada Revenue Agency entered into a settlement agreement whereby if the Minister of National Revenue reassessed the applicant in accordance with the terms of the settlement agreement, the taxpayer waived its rights of objection and appeal. The settlement agreement did not set out the final amounts owing by the applicant, just how various amounts at issue were to be increased or decreased on final assessment. Despite the waiver, the applicant brought appeals against its reassessments made under the Excise Tax Act for its reporting periods ending February 28, 2007; April 30, 2007 and April 30, 2008, and under the Income Tax Act for its 2007, 2008 and 2009 taxation years. The applicant argued that the settlement agreement contemplated adjustments to the amounts set out in the original and amended tax returns filed by the taxpayer, whereas the Canada Revenue Agency took the position that the adjustments were to the amounts in its reassessment of the taxpayer. Motions brought by the respondent to quash the applicant’s appeals were granted by the Tax Court of Canada and an appeal by the applicant was dismissed by the Federal Court of Appeal.

Compare jurisdictions: Litigation: Enforcement of Foreign Judgments

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